domestic law in international shipping.
39 As a result, the US Harter Act
40 was
enacted in 1893 to balance cargo and carrier interests governing all sea carriage to
and from the US.
41 The Harter Act and subsequent judicial rulings
42 set American
courts on a path greatly different from those of the UK courts.
43 The shift originated
from the US Supreme Court’s recognition of the need to protect American shippers
by American courts. The American domestic merchant fleet came to rely on British
ships for international carriage of goods by sea, owing to the decline of the American
shipping industry.
44
The US Harter Act has had a long-lasting impact on carriage of goods by sea.
45
Being quite aggressive in its approach,
46 it served as a model triggering a wave of
legislative enactments dominated by cargo interests not only in the US, but also in
Commonwealth countries. Several countries followed the US and unilaterally
enacted domestic legislation governing exoneration clauses in bills of lading.
47
These were the Australian Carriage of Goods by Sea Act 1904,
48 the New Zealand
Shipping and Seamen Act 1903,
49 the Canadian Water Carriage Act 1910,
50 and the
39 Faria (2008), p. 279. The Europe was the undeniably supreme power of the world when the US
Harter Act was ratified in 1893. However, Japan and the United States became ascendant powers
before World War I. Europe, which had colonised virtually all the African continent, as well as
many parts of Asia and the Pacific regions, was about to be surpassed by the US after World War I.
40 United States, the Harter Act 1893, 27 Stat. 445 (1983). The Harter Act is currently codified at
46 U.S.C. app. §§ 190–196 (1998).
41 See also Sturley (1991), pp. 11–14 (pinpointing the process of the passage of the US Harter Act as
a compromise balancing cargo and hull interests).
42 For example, in Missouri Steamship Co., Re (1889) 42 Ch D 321, the traditional conflicts rule to
apply British law which upheld an exculpatory clause were overlooked, and the law of the US port
of loading held the exculpatory clause invalid.
43 See also Sweeney (1993).
44 Before the American Civil War (1861–1865), foreign flag carriage in the American international
trade accounted for approximate 33% during 1855–1859, but the effect of the northern blockade of
the southern originating exportation and the destruction of the northern shipping industry increased
foreign carriers’ involvement to 56%.
45 Sweeney (1993), p. 1.
46 See Sturley (1991), p. 4.
47 Ibid, 10.
48 Sea-Carriage of Goods Act 1904, No. 14 (Australia), superseded by Sea-Carriage of Goods Act
1924, No. 22 (Australia).
49 Compare Shipping and Seamen Act, 1903, No. 96, § 293 (New Zealand), with the US Harter Act
§ 3; compare Shipping and Seamen Act, 1903, § 300(1) (a) with the Harter Act § 1; compare
Shipping and Seamen Act, 1903, § 300(1) (b) with Harter Act § 2; compare Shipping and Seamen
Act, 1903, § 300(2) with the Harter Act § 7.
50 There were several significant differences between the Harter Act and the final Canadian
legislation, the Water Carriage of Goods Act 1910, 9–10 Edw. 7, ch. 61 (Canada), superseded by
Water Carriage of Goods Act, 1936, 1 Edw. 8, ch. 49 (Canada), codified as Carriage of Goods by
Water Act, Can. Rev. Stat. ch. C-15 (1970). For example, § 5 of the Canadian Act of 1910 required
a clause paramount in outbound bills of lading and prohibited choice-of-forum clauses purporting to
oust or lessen the jurisdiction of any Canadian court at the port of loading. Sections 6 and
766
L. Zhao
39 As a result, the US Harter Act
40 was
enacted in 1893 to balance cargo and carrier interests governing all sea carriage to
and from the US.
41 The Harter Act and subsequent judicial rulings
42 set American
courts on a path greatly different from those of the UK courts.
43 The shift originated
from the US Supreme Court’s recognition of the need to protect American shippers
by American courts. The American domestic merchant fleet came to rely on British
ships for international carriage of goods by sea, owing to the decline of the American
shipping industry.
44
The US Harter Act has had a long-lasting impact on carriage of goods by sea.
45
Being quite aggressive in its approach,
46 it served as a model triggering a wave of
legislative enactments dominated by cargo interests not only in the US, but also in
Commonwealth countries. Several countries followed the US and unilaterally
enacted domestic legislation governing exoneration clauses in bills of lading.
47
These were the Australian Carriage of Goods by Sea Act 1904,
48 the New Zealand
Shipping and Seamen Act 1903,
49 the Canadian Water Carriage Act 1910,
50 and the
39 Faria (2008), p. 279. The Europe was the undeniably supreme power of the world when the US
Harter Act was ratified in 1893. However, Japan and the United States became ascendant powers
before World War I. Europe, which had colonised virtually all the African continent, as well as
many parts of Asia and the Pacific regions, was about to be surpassed by the US after World War I.
40 United States, the Harter Act 1893, 27 Stat. 445 (1983). The Harter Act is currently codified at
46 U.S.C. app. §§ 190–196 (1998).
41 See also Sturley (1991), pp. 11–14 (pinpointing the process of the passage of the US Harter Act as
a compromise balancing cargo and hull interests).
42 For example, in Missouri Steamship Co., Re (1889) 42 Ch D 321, the traditional conflicts rule to
apply British law which upheld an exculpatory clause were overlooked, and the law of the US port
of loading held the exculpatory clause invalid.
43 See also Sweeney (1993).
44 Before the American Civil War (1861–1865), foreign flag carriage in the American international
trade accounted for approximate 33% during 1855–1859, but the effect of the northern blockade of
the southern originating exportation and the destruction of the northern shipping industry increased
foreign carriers’ involvement to 56%.
45 Sweeney (1993), p. 1.
46 See Sturley (1991), p. 4.
47 Ibid, 10.
48 Sea-Carriage of Goods Act 1904, No. 14 (Australia), superseded by Sea-Carriage of Goods Act
1924, No. 22 (Australia).
49 Compare Shipping and Seamen Act, 1903, No. 96, § 293 (New Zealand), with the US Harter Act
§ 3; compare Shipping and Seamen Act, 1903, § 300(1) (a) with the Harter Act § 1; compare
Shipping and Seamen Act, 1903, § 300(1) (b) with Harter Act § 2; compare Shipping and Seamen
Act, 1903, § 300(2) with the Harter Act § 7.
50 There were several significant differences between the Harter Act and the final Canadian
legislation, the Water Carriage of Goods Act 1910, 9–10 Edw. 7, ch. 61 (Canada), superseded by
Water Carriage of Goods Act, 1936, 1 Edw. 8, ch. 49 (Canada), codified as Carriage of Goods by
Water Act, Can. Rev. Stat. ch. C-15 (1970). For example, § 5 of the Canadian Act of 1910 required
a clause paramount in outbound bills of lading and prohibited choice-of-forum clauses purporting to
oust or lessen the jurisdiction of any Canadian court at the port of loading. Sections 6 and
766
L. Zhao